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High CourtPartially AllowedNot stated in the judgment (arising from Eldoret CMCC No. 22 of 2013)

Nicholas Kibet Kemboi & Another (Appellants) vs Lilian Kemunto Mokua & Another (Respondents) - Stay of Execution Pending Appeal

High Court of Kenya
14 May 2020
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an application by notice of motion dated 20 February 2019, brought by the Appellants under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1(1) of the Civil Procedure Rules, seeking stay of execution of the judgment of 13 November 2018 and decree in Eldoret CMCC No. 22 of 2013 (a test suit) and Eldoret CMCC No. 422 of 2013, and stay of proceedings and execution in four other related suits in which Eldoret CMCC No. 22 of 2013 was the test suit. The Appellants, held 40% liable as third parties arising from a road accident of 1 April 2013, argued they would suffer substantial loss because the 1st Respondent was a woman of straw unable to refund the decretal sum if the appeal succeeded, and offered security through an insurance bond. The 1st Respondent opposed, asserting she was a businesswoman of means. The court, applying Order 42 Rule 6(1) and the Butt and Machira principles, found no undue delay, held that the merits of the appeal were irrelevant, and applied the Wasike shift of evidential burden: the 1st Respondent annexed no proof of her means, so the Appellants' apprehensions were not baseless. The application was allowed; execution was stayed in the two decrees conditional on deposit of 40% of the decretal sum in each case in a joint interest-earning account within 60 days; stay of proceedings and execution was granted in the four related test-suit matters; and costs of the application were ordered to abide the appeal.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

The Appellants' apprehension that the 1st Respondent could not refund the decretal sum was not baseless, since she annexed no documents proving her means; the evidential burden shifted to her

Reasoning

The court applied Order 42 Rule 6(1) and the Wasike principle: while the legal duty of proving substantial loss lies on the applicant, once a reasonable fear of non-refund is expressed, the evidential burden shifts to the respondent, who has annexed no proof of business, employment or income.

p. 3
02

Whether there was undue delay

Holding

Both the appeal and the application were filed without undue delay; the need for stay arose only upon proclamation of attachment on 19 February 2019

Reasoning

The court noted the judgment was delivered on 13 November 2018, the appeal filed on 29 November 2018, and the application promptly on 20 February 2019, the day after attachment was proclaimed by Saddabri Auctioneers.

p. 3
03

Whether security should be a condition of stay

Holding

Stay was granted conditional on deposit of 40% of the decretal sum in a joint interest-earning account within 60 days

Reasoning

The 2nd Appellant's insurers offered an insurance bond and the Appellants offered to abide by reasonable conditions; the court, exercising discretion under Order 42 Rule 6, conditioned stay on a deposit to protect the decree-holders' interests.

p. 4

Legal principles established

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  • Once an applicant expresses a reasonable fear that a respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to show his resources
  • A successful litigant is entitled to the fruits of his judgment, which may only be delayed by stay if substantial loss is demonstrated
  • The merits of the appeal are not a pertinent consideration on an application for stay under Order 42 Rule 6

Court orders

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  1. 1.The application dated 20 February 2019 be and is hereby allowed
  2. 2.Execution of the judgment dated 13 November 2018 and the decree against the Appellants in Eldoret CMCC No. 22 of 2013 and Eldoret CMCC No. 422 of 2013 be stayed pending the hearing and determination of the appeal, on condition that 40% of the decretal sum in each case be deposited in a joint interest-earning account in the names of counsel on record within 60 days
  3. 3.Stay of proceedings and execution in the other test-suit matters: Eldoret CMCC Nos. 172 of 2013, 332 of 2013, 353 of 2013 and 1262 of 2016
  4. 4.Costs of the application shall abide the appeal
On appeal from
Eldoret Chief Magistrate's Court
Eldoret CMCC No. 22 of 2013 (and Eldoret CMCC No. 422 of 2013)
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap 21; Order 42 Rule 6 and Order 51 Rule 1(1) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nicholas Kibet Kemboi & Another (Appellants) vs Lilian Kemunto Mokua & Another (Respondents) - Stay of Execution Pending Appeal", Case Analysis (2020). Not stated in the judgment (arising from Eldoret CMCC No. 22 of 2013). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.